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GASCOE, LTD. v. NEWTOWN TWP.

October 24, 1988

GASCOE, LTD., a Pennsylvania corporation, T/A American Home Theatres
v.
NEWTOWN TOWNSHIP, BUCKS COUNTY, a municipal organization of the Commonwealth of Pennsylvania; THE BOARD OF SUPERVISORS OF NEWTOWN TOWNSHIP, an executive authority established pursuant to the laws of the Commonwealth of Pennsylvania; NANCY SMITHSON; VINCENT LOMBARDI; JOHN McGURNEY; DAVID EVANS and DONALD WILLIAMS, Individually and as members of the Board of Supervisors, jointly, severally and in the alternative



The opinion of the court was delivered by: BECHTLE

 LOUIS C. BECHTLE, UNITED STATES DISTRICT JUDGE

 This case calls into question the precise issue left unanswered by the United States Supreme Court's trio of decisions in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986), Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981), and Young v. American Mini-Theatres, 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976); namely, whether a municipality may, consistent with the First and Fourteenth Amendments, use its zoning power to prohibit entirely the distribution of adult films within its jurisdiction. This court holds that it may not. Such an ordinance inflicts an unconstitutionally overbroad prior restraint on free speech by failing to institute procedural safeguards which limit the restrictions to films satisfying the Supreme Court's definition of obscenity.

 A brief recitation of the facts in this case reveals the inevitable conflict between the First Amendment and the video age. Plaintiff, Gascoe, Ltd., is a Pennsylvania corporation doing business as American Home Theatres. On August 7, 1987, plaintiff entered into a lease agreement with Newtown Village Partnership to lease property in a shopping center in Bucks County, Pennsylvania, known as Village at Newtown Marketplace, for the express purpose of renting and selling recorded and blank videotape cassettes and related equipment to the public. Pursuant to the municipal zoning ordinance, plaintiff made application for a conditional use permit to the Newtown Township Planning Commission. On August 9, 1988, the Planning Commission recommended approval to the Newtown Township Board of Supervisors.

 At a public hearing held by the Board of Supervisors on August 30, 1988, plaintiff represented that it intended to rent and sell "adult" films which, based on prior calculations, would account for between 10 and 25 percent of its total business. As a result of this statement, the Board of Supervisors voted unanimously to deny conditional use approval. The Board initially found that the application of American Home Theatres failed to satisfy the provisions of Section 1301(B) of the township's Joint Municipal Zoning Ordinance, which reads in pertinent part:

 
2. An improvement which shall not be a detriment to the property in the immediate vicinity and which shall be in the best interests of the municipality, the benefit of the community and the public welfare.

 In a letter of September 12, 1988, the Township Solicitor clarified the Board's position as follows:

 
Renting and selling adult films in a shopping center which is open to the general public and which is frequented by persons of all ages and both sexes is not in the interests of the municipality, will not benefit the community and will not further the public welfare. The rental and sale of films which are x-rated for sensuality is offensive to the citizens of Newtown Township and must be prohibited.

 Upon its application for reconsideration, plaintiff objected to the Board's decision to exclude all x-rated videos from distribution. Plaintiff argued that such a comprehensive ban necessarily encompassed material protected by the First Amendment. Although plaintiff conceded the validity of reasonable restrictions on the sale, rental and advertising of its adult fare, it believed that the standard practices of American Home Theatres in cordoning off x-rated films from its mainstream inventory would alleviate the Board's concern for the community welfare. As an illustration of its procedures, plaintiff submitted to the Board several lease provisions *fn1" governing the rental of adult videos at other American Home Theatre outlets and assured compliance with any local ordinance regulating the sale or rental of "obscene" materials.

 Despite these assurances, the Board of Supervisors once again denied plaintiff's application for a conditional use permit, but narrowed its definition of objectionable videos to those which would violate the Newtown Township Obscenity Ordinance. Modeled after the Pennsylvania Obscenity Act, 18 Pa.Cons.Stat. ยง 5903 (Purdon 1983), the ordinance adopts verbatim the Supreme Court's definition of obscenity as enunciated in Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). In a letter dated September 19, 1988, the Board stated that obscene videos are those which:

 
a.) The average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the prurient interest;
 
b.) The subject matter depicts or describes in a patently offensive way sexual conduct, of a type hereinafter described; and
 
c.) The subject matter taken as a whole lacks serious literary, artistic, political or scientific value.

 The Board then included in its letter the ordinance's definition of patently offensive material. *f ...


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